Friday, August 22, 2014

Kellum and Senate race

The Kellum v. Johnson case is cited and discussed quite a bit in the Chris McDaniel election challenge.  Since many of you have not read the case, I am posting it here for your convenience.




KELLUM v. JOHNSON.
Supreme Court of Mississippi.
October 29, 1959.
J.W. Kellum, Sumner, pro se.
McClure, Fant & McClure, Sardis, for appellee.

LEE, J.

J.W. Kellum appealed from a judgment of the Special Court, set up under the Corrupt Practices Act of 1935, which dismissed his petition to contest the democratic nomination of Roy E. Johnson in the primary election of August 4, 1959, for the office of District Attorney of the Seventeenth Circuit Court District of the State.

In the primary election, Kellum received 9411 votes and Johnson received 9430 votes, thus giving to Johnson a majority of 19 votes. Thereupon the State Executive Committee declared Johnson to be the nominee.

On September 8, 1959 — 35 days after the primary — Kellum filed with the chairman of the State Democratic
[237 Miss. 583]
Executive Committee his complaint as to the result. (This petition or contest was, by agreement of the paries, omitted from the record). At any rate, the petition for a judicial review recited that the chairman of the State Democratic Executive Committee gave notice that the committee would take no action thereon.

On September 21, 1959, Kellum filed, in the Circuit Court of the Second Judicial District of Tallahatchie County, his petition for a judicial review.

In answer to that petition, Johnson filed what he denominated as a "Motion to Dismiss" in which it was pointed out that "the petition exhibited against him herein by the Contestant shows on its face the following facts, to-wit:

"That the Contestant's original petition by which he initiated his contest was not filed with the Chairman of the State Democratic Executive Committee within a period of twenty days after the primary election sought to be contested; that, therefore, any right which the Contestant may have had to contest the declared result of said election had expired prior to the filing of said original petition with said Chairman; and that, accordingly, said Chairman properly and correctly declined to take any action on said original petition.

"Wherefore, the Contestee respectfully moves the court to dismiss the partition exhibited against him herein."

On the date of the hearing, no question of fact was presented. The Special Judge, Hon. Arthur B. Clark, Jr., appointed by the Chief Justice of the Supreme Court of Mississippi, heard the parties and concluded that the motion to dismiss was well taken. Consequently, the motion was sustained, the petition was dismissed, and the action of the State Democratic Executive Committee in declaring Roy E. Johnson as the nominee of the democratic party for the office of District Attorney
[237 Miss. 584]
of the Seventeenth Circuit Court District of the State was approved, ratified and affirmed.

The sole question for determination is whether or not the contest was filed in time.

Prior to 1908, there was no tribunal vested with power to hear a primary election contest and determine who was the party nominee — to correct the wrongs and frauds bearing upon the solution of that question — except the Executive Committee. Brewer v. Abbay, 82 Miss. 559, 35 So. 153 (1903), a contest over the democratic nomination for the office of county treasurer; Ramey v. Woodward, 90 Miss. 777, 44 So. 769 (1907), a contest over the democratic nomination for the office of chancery clerk; State v. Brown, 90 Miss. 876, 44 So. 769 (1907), a contest over the democratic nomination for the office of sheriff.

However, the Legislature by Chapter 136, Laws of 1908, provided a method of contest in such instances; and that Act, with slight and unimportant amendments, now appears as Section 3143-45, Code of 1942 Rec., and has remained unchanged after the enactment of the corrupt Practices Act of 1935, Section 3158, et seq., of the Code of 1942.

Section 3143, supra, is as follows: "A person desiring to contest the election of another person returned as the nominee of the party to any county or beat office, may, within twenty days after the primary election, file a petition with the secretary, or any member of the county executive committee in the county in which fraud is alleged to have been perpetrated, setting forth the grounds upon which the primary election is contested; and it shall be the duty of the executive committee to assemble by call of the chairman or three members of said committee, notice of which contest shall be served five days before said meeting, and after notifying all parties concerned, proceed to investigate the allegations of fraud, and, by majority vote of members present, [237 Miss. 585] declare the true results of such primary." (Emphasis supplied). Under this Section the petition to contest must be filed within twenty days after the primary election.

Section 3144, supra, is as follows: "In state, congressional and judicial districts, upon complaint filed with the chairman of the state executive committee by petition, reciting the allegations of fraud, and with the advice of four members of said committee, the chairman shall issue his fiat to the chairman of the county executive committee, where fraud is alleged to have been committed, and in like manner as in county office, the county committee shall investigate the complaint and return their findings to the chairman of the state committee, which shall declare the candidate nominated, whom the corrected returns show is entitled to the same. And the same procedure shall apply to senatorial and flotorial contests in and by their respective executive committees." (Emphasis supplied). Under this section, the time within which a petition to contest must be filed is not mentioned.

Section 3145, supra, merely grants the power to subpoena and attach witnesses.

(Hn 1) In construing statutes, the courts should not convict the Legislature of unaccountable capriciousness. See 50 Am. Jur., Statutes, Section 372, page 380, in part as follows: "An intent to discriminate unjustly between different cases of the same kind is not to be ascribed to the legislature. It is not to be presumed that the legislature intended to make a distinction which would convict it of an unaccountable capriciousness on the subject. Hence, where the legislature has clearly laid down a rule for one class of cases, it is not readily to be supposed that, in the same act, a different rule has been prescribed for another class of cases within the same reason as the first."

[237 Miss. 586]
(Hn 2) Statutes should, if possible, be given a construction which will produce reasonable results, and not uncertainty and confusion. 50 Am. Jur., Statutes, Section 382, page 394.

(Hn 3) The two sections here under consideration are parts of the same statute, and the Act must be considered as a whole. See 50 Am. Jur., Statutes, Section 352, pp. 350-4, as follows: "The different parts of a statute reflect light upon each other, and statutory provisions are regarded as in pari materia where they are parts of the same act. Hence, a statute should be construed in its entirety, and as a whole. The general intention is the key to the whole act, and the intention of the whole controls the interpretation of its parts. The fact that a statute is subdivided into sections or other parts should not obstruct or obscure the interpretation of the law as a whole. All parts of the act should be considered, compared, and construed together. It is not permissible to rest the construction upon any one part alone, or upon isolated words, phrases, clauses, or sentences, or to give undue effect thereto. The legislative intention as collected from an examination of the whole as well as the separate parts of a statute, is not to be defeated by the use of particular terms, but, to the contrary, will prevail over the literal import thereof."

(Hn 4) When one faces reality, it is obvious that primary election contests, if they are to be allowed and the favorable results thereof come to full fruition, must be conducted speedily. The names of party nominees, if they are to be of any avail, must go on the ticket for the general election, which is required by Section 102 of the Constitution of 1890, to be held on the first Tuesday after the first Monday in November. Unless this course can be vouchsafed, there would be no virtue in holding primary elections to choose nominees of the parties. It is inconceivable that the Legislature intended to limit the time in which contests could be filed where
[237 Miss. 587]
a county or beat office was involved, and yet fix no time limit whatever for that purpose in regard to all other offices. So to hold would convict the Legislature of unaccountable capriciousness and result in endless uncertainty and confusion. The two sections are in pari materia, and all contests therefore must be begun within twenty days after the primary. To hold otherwise would be senseless.

Although Section 3287, Code of 1942 Rec., pertains to general and special elections, it is somewhat helpful in arriving at the legislative intent in the present instance. That section provides in part as follows: "And in case the election of district attorney or other state district election be contested, the petition may be filed in any county of the district or in any county of an adjoining district within twenty days after the election, and like proceedings shall be had thereon as in the case of county officers, and the person found to be entitled to the office shall qualify as required by law and enter upon the duties of his office." (Emphasis supplied).

(Hn 5) Since the appellant did not file his contest within twenty days from the date of the primary, manifestly the special court was correct in dismissing the same.

But the appellant says that the twenty day period is a limitation; that a statute of limitations is a personal privilege which may be waived; and that the appellee waived the limitation by not setting it up in a special plea.

(Hn 6) This Court is of the opinion that the twenty day provision is not a statute of limitations. On the contrary, it is a condition precedent to the right to file a contest. A failure so to do does not have to be pleaded in any particular way by the contestee. In 34 Am. Jur., Limitation of Actions, Section 7, pages 16, 17, a statute of limitations is differentiated from conditions which are annexed to a right of action created by statute as follows: "A statute which in itself creates a new liability,
[237 Miss. 588]
gives an action to enforce it unknown to the common law, and fixes the time within which that action may be commenced, is not a statute of limitations. It is a statute of creation, and the commencement of the action within the time it fixes is an indispensable condition of the liability and of the action which it permits. The time element is an inherent element of the right so created, and the limitation of the remedy is a limitation of the right. Such provision will control, no matter in what form the action is brought."

The motion to dismiss clearly pointed out that the petition had not been filed within twenty days after the primary election. The special court having properly dismissed the petition because it was not filed in time, it follows that the judgment of that court must be, and is, affirmed.

Affirmed.

Roberds, P.J., and Hall, Kyle, and Holmes, JJ., concur.

48 comments:

Anonymous said...

The brief for Cochran's Motion notes that the statutes were reenacted in 1972 without change. In fact the statutes and the rule of the Kellum case have not changed since 1959, meaning Kellum is hardwired into the statutes. If McD did not like the Kellum rule, as the Chairman of the Senate Elections Committee he could have introduced a bill to change the language interpreted by the Court as including the 20 rule. A bit too late now to complain about the 20 day rule of Kellum since presently McD finds himself before a Judge on a Motion to enforce the law as it now stands. He'll have to live with it because it is the long established law of Mississippi; a law he had the opportunity to seek to change, but never did. Whatever McD's response is, it will be too little, too late. If his case is kicked out on the long existing statute of limitations, MdD will have only himself to blame since as the attorney serving as Senate Elections Chairman, he is chargeable with reviewing knowing the election laws. Simple, really.

Anonymous said...

Also, Joe Nosef sent a copy of the statute to the McDaniel team when he became aware of it. It was before the 27th of July. If the judge dismisses, they have no one to blame but themselves.

Jim Galloway said...

1:13 is right. And the Constitutional claims will fail because McD's lawyers didn't sue the State, just Thad.

Anonymous said...

The constitutional claims also fail because McDaniel is not a political party and therefore does not have standing to challenge the open primary statute. Osborn v. Cox, 369 F.3d 1283 (CA 11, 2004), cited by Judge Mills in his True the Vote opinion.

Anonymous said...

If McDaniel and Tyner ever team up on an NBI Seminar on Mississippi Election Laws, I think I'll skip it.

Anonymous said...

Is it not legally significant that McDaniel did file a challenge with the Executite Committee of the GOP within 20 days? I mean, he did have to exhaust his administrative remedies first, which his campaign did.

The filing of the challenge with the Exec. Comm. does not constitute the filing of a challenge, as contemplated by Kellum, within 20 days of the election?

Anonymous said...

I'll say it again- these people are f'ing morons. I read the law when the public was made aware- I'm no lawyer, but I can google in pari materia and see what it means. Not only that, but this was clearly written for people like McDaniel when you consider the verbiage used in it... which is probably why it's worded that way in the first place.

Thank your forefathers, folks. They saw this coming before McD was born and said, "enough with this shit."

I've never understood naming Thad as the defendant, even if it's sometimes done. It just doesn't make sense based on the claims.

Quite honestly, I would make a note of who is on this legal team and heavily consider it if you ever feel the need to use one in the future. This case has opened my eyes as far as reading the law, thinking about how I interpreted it but what arguments I might allow that differ from my opinion, and then seeing how far from that someone else can get. I realize it's semi-part of the trade, but... c'mon now.

Anonymous said...

He didn't meet the 20 days with the executive committee either. His time ran out Jul. 27. He filed with the exec committee on 8/4.

Anonymous said...

Correct. Time was up 7/27.

Quite honestly, the fact that the Republican Party made this discovery before Chris and Mitch did is kind of funny- you'd think the people filing the charges would think about something like that first.

THEN, to say it doesn't apply to state-wide elections and continue to state this over and over when it seems pretty clear to most it not only does, but states in more than one way that for it to go on any longer doesn't make sense... I don't know if they just expect people to believe them if they just say it enough, but it seems to be the game plan of this campaign throughout.

Personally, I'm loving that even the fringe posters lately have seemed pretty silent. There's a slight chance this judge may allow this to go forward, but a higher court will read that law and apply it as it says.

Anonymous said...

McD and MT are fubabs masquerading as 'lawyers' and clowning around as 'politicians' making public fools of themselves in such a manner that the whole world, excluding themselves sees it.
If they aren't embarrassed beyond all belief, they have no shame.

Anonymous said...

10:16, some folks still have to work for a living. Or, McDaniel folks are less visible, because there is a trend of self-selection bias amongst the commenter-group hereabouts (not very many people enjoy a hostile audience; must make me a bit of a masochist). But methinks the key reason, is that seeing McDaniel get his shot at justice, is what most of the pro-McDaniel folks wanted to accomplish. Why complain, when soon the evidence will be seen in court?

Uh-oh: what does that portend, given access-delays, followed by refusal to hear, on technicalities? Nothing good. To me, the motion to dismiss because the lawsuit was supposedly filed too late, and same because the lawsuit named the traditional defendant, plus the refusal to adjust the ballot-printing schedule because the lawsuit failed to name some other defendant, are technicalities. Are they important, in some small way, to the abstract concept of legal justice, rule of law, and all that crucial stuff? Sure. But are they, at the same time, extremely likely to solidify the split in the repub party, if they become the basis of the decision? Yup.

Legal strategy of team Cochran lawyers is clear: rather than say that no more illegal-double-votes occurred than in ANY human-error-prone election (which they could show by analysis of the Wicker vs Gore results from a few years ago and other historical elections), the tactic is to disqualify all the evidence they can, on whatever technicalities they can dream up. Same thing for invalid-absentee-votes, retroactive-vote-erasures, etc. The lawyers for team Cochran are "just doing their job" and working to get the lawsuit thrown out, or failing that to get the evidence thrown out, else pound the table. As with staffers for team Cochran during the runoff, the goal is to win at any cost.

But, just like the runoff-outcome, where the staffers "won" by 7700 votes but split the party over their tactics, the lawyers may "win" the lawsuit on a technicality, but forever leave key questions unsettled: WAS there vote-buying, was there INCITING the populace to illegally vote, and how many invalid votes WERE (provably) cast on 6/24... enough to doubt the win?

Ending the court-case on such grounds might be acceptable to lawyers, and may even be acceptable to binary-thinking tea-party-hardliners who want laws from the Constitution on down to mean exactly what they say (and be enforced as such). But I'd not call it justice in the pragmatic sense of satisfying the bulk of the populace that the truth-beyond-a-reasonable-doubt was sought, and based thereon, a fair decision made.

Lawyers in the room, what is the status of the cases McDaniel filed in July, seeking access to election-materials needed to file the final 8/4 challenge? Some counties said McDaniel couldn't review boxes, based on a 12-day-deadline (but in all cases save one methinks the court ruled that the 12-day-deadline was only valid once the county actually GAVE access to the election-materials; the judge then automagically made a new 12-day-span). So:

1. are the mid-July lawsuits 'part' of the overall challenge? This is similar to the question of whether the 8/4 challenge to the SREC 'counts' as part of the overall challenge.

2. even if the July lawsuits do not 'count' as part of the overall challenge, do those court-delays in July give reason to extend the 20-days, just as they gave reason to extend the 12-days?

3. even if you are a pro-Cochran supporter, and "tired" of all this stuff about investigating election fraud, do you really want to see the lawsuit overturned, because it was filed Mon 8/4, rather than Sun 7/27, eight days off? A week of delay is nothing to sneeze at, but it's also pretty small potatoes. The judge just bumped the decision-date from Oct 3rd to 6th, a 3-day-delay that won't make much difference, after all.

4. is the 20-day-deadline excluding weekends & holidays? was filing on Monday the 28th "early enough" to count? It isn't 20-bizdays, right?

Anonymous said...

I haven't seen this many gunners since the first semester of law school.

Kingfish said...

We have statutes of limitations for a reason. I'm sure if Obama and Holder decided to prosecute someone ten years after a crime was committed and said prosecution was barred by SOL , you'd be screaming due process and how Obama was a tyrant.

Now there is a statute of limitations in this law for a reason. Don't want election challenges filed a few days before an election for example. I hope this does go to trial so the so-called evidence can be examined under the rules of evidence. No more hearsay, no more wild claims, either you got it or you don't and we can all see it.

but don't whine about technicalities and then go Rah Rah Hannity and Rush when they talk about the rule of law. Frankly, some of you are starting to sound like the Goreites in 2000 post-election.

and yes, I'm quite aware of what tactics and advertising was used in the black community. I broke the story, remember?

Anonymous said...

3:40 am
First, does your old lady know you were up at 3:40 am writing an epistle to KF? You were supposed to be asleep, remember?

Second, McD got access to the ballot boxes, just not to the birth dates on the poll books--a separate issue because poll books are not ballot boxes.

Third, the 20 days under Kellum is actually a "condition precedent" under the case rather than a statute of limitations, as the case notes, albeit similar result. McD wants his day in a court, but failed to get his ticket punched in time legally to get on the merry go round. So now he's going to have to get off for lack of a ticket. The rest of us don't want to be spun around any more although I agree that the best result would be he also loses on motions in limine to preclude his bullshit that is not evidence. Maybe then we won't have a riot in Ellisville.

Anonymous said...

It's 20 days. Period. Bottom line, some very poor lawyering by team McDaniel.

Anonymous said...

3:40, I know that- it just seems the McDaniel people usually have a little more time than the average person until lately. Whether their work is actually requiring them to show up or they're figuring out how dead this challenge is, I'm not seeing the number of people defending this thing with gusto that I have been. It's notable.

If you're fine with a "split" of the party because one side refuses to deal with reality, that's okay with me. I prefer not to associate with deluded individuals anyway. Weed yourself out.

They're not "dreaming up technicalities"- they're using the law to dismiss what appears to be a frivolous lawsuit. That's what they're supposed to do. It's unfortunate Mitch and Chris can't interpret the law for themselves or maybe they would not have filed this suit- your "20 business days" theory does not line up with their "this does not apply to statewide elections" theory. He should have put more time into the campaign in the weeks leading up to the runoff and maybe he wouldn't have to be filing lawsuits to try to win retroactively.

It's certainly justice. I don't want some conspiracy theories ruining an election. If McDaniel wanted some things fixed, he should have fixed them in his position as Chairman. He pretty much turned his nose up at any of the things he COULD have done proactively, and now he's whining that it's not fair. He cares blacks were asked to vote? Prove it and take Joe Nosef up on his offer to make a public statement on it. He worried about crossovers? Simply challenge it the day of. Challenge the election? Find the law on it, first. Basically, his inaction until after he found out he lost tells me what I need to know about how he operates. I don't want to elect some guy that doesn't take proper action at the right time. This isn't an effective strategy for anything.

I'm fine with him taking his "evidence" to court- been saying that. I honestly think it's going to make him look worse. If he can do this to the point that this becomes case law, that'd be perfect. We should never have to forget how hard some people choose to chase ignorance. This needs to be framed and preserved.

It's disturbing knowing this man is a State Senator.

Jim Galloway said...

12:06 PM: McD's not only "a State Senator", he's among the brightest and the best we have in Mississippi! God save us all.

Anonymous said...

The 20 days is set, including weekends, holidays, and all. The clock actually tolled on July 14th, 14th, not the 27th (the ButlerSnow team was being generous by counting from certification, although the law counts from the day of the election.) Basis for it hinges on a first primary - the challenge must occur before the 2nd primary - 21 days after the first primary election.

Much case law on the fact that election laws are to be construed strictly. And that the deadlines (12 days for examination after certification, 20 days for filing a challenge) cannot be changed - even by a court. So the Jackson County judge that tried to extend the deadline was out of line with the law.

McD's team of lawyers and their various lawsuits in July about not wanting to pay for copies and not wanting redacted versions of the poll books has nothing to do with these deadlines. They were provided with everything they were entitled to - and were not given what the law says they were not entitled to, that being 'extra special treatment because they are extra special folks'.

I wish that this would go through the entire court process so that the foolishness of their claims could be shown. But what I want doesn't matter - the law says it isn't supposed to happen.

McD's strategy and his team of advisors have used the strategy that if they say it enough people will believe it. 3:40 - you refer to their claim of 'vote buying', something McD continues to state but so far there has been nothing put forward as evidence -except of course the wonderful Rev Fielder' various statements - but the zealots still supporting him repeat this over and over, just as you have here.

If you have any evidence of vote buying, bring it forth. I am sure that there are many law enforcement agencies that would love to see that evidence. If you don't, but just 'suppose' it could have happened, you should shut up and go back to bed.

Anonymous said...

Thinking of McSmartypant's challenge some more, I wonder if it wouldn't be a good idea for the judge to hear the motion to dismiss, but reserve ruling pending also hearing motions in limine of Cochran to exclude certain kinds of claims as a matter of law--like all those supposed irregularities that are in fact not a violation of the election statutes, and are in the "so what" category. Then if excluding all that, the regression analysis etc, leaves McSmartypants with too small a challenge to overturn the election, the the Judge can throw it all out on all those grounds as well as the 20 days without
having a tedious vote by vote trial. And that way it will be clear there never was a real legal challenge.

Anonymous said...

If the Judge were to deny motion, can team Cochran appeal denial to Supremes who would be likely to grant motion or would they have to wait?

Anonymous said...

6:35
I bet the SCt would allow an interlocutory appeal given the extraordinary circumstances and public interest.

Anonymous said...

7:42, so the idea is, if the judge appointed by the SCt decides to hear the evidence, the Butler Snow lawyers can go to the SCt direct, and get the case killed thataway? The story of how the evidence was dismissed on a technicality will never end, if that is the final resolution. Folks who are pro-Cochran should not wish for such an ending to occur; blowback aka shooting oneself in the foot, would be the end result in 2015 and 2016.

Similarly, 4:43, there are various ways of dismissing evidence. Some of them are valid/just/proper, and will be seen as such: for instance most folks would not see the back-of-the-envelope analysis by the nyTimes statistician as being beyond-a-reasonable-doubt. However, other kinds of dismissal will be perceived as corrupt, for instance, saying that all the retroactive-erasures cannot now be challenged because the state has already certified (when of course the only way to *file* an election challenge is for the state to first certify!). Or equivalently, saying that all illegal-double-votes must count, since they were not challenged at the polling-place (when the only way to *know* there was an illegal-double-vote would be to have the pollbooks swapped ... and in at least some cases this was allegedly not done).

My contention is that the only way that this case will ACTUALLY resolve issues... as opposed to just angering people further... is if it goes all the way to trial, the evidence is presented, and the judge weighs it carefully, then decides 1) whether fraud occurred and if so how many votes were fraudulent exactly, and 2) whether anybody is guilty of inciting or encouraging or otherwise causing that fraud, perhaps intentionally and/or perhaps should-have-known.

The counter-argument, that this whole thing has gone on long enough, and that "everybody" is tired of election-verification and such, holds little water. That was the same complaint being publicized since July 2nd; another three weeks won't make any difference on that score. (Of course, the complaint that there is 'no evidence' is even more silly; the whole point of having the trial is review of the evidence, and ending the review of the hundreds of pages of evidence on the basis that it does not exist is beyond far-fetched.)

To me this is the key question, so I'll repeat #3 from above: do the pro-Cochran folks here *really* want to see the lawsuit overturned, because it was filed Mon 8/4, rather than Sun 7/27, eight days off? Is "winning" once again the only goal, no matter how the victory is accomplished?

Anonymous said...

KF @ 9:48, yes, if Obama sued ten years after the statute of limitations had passed, then I would cry tyrant. No, I don't rah-rah for Hannity && Limbaugh; talk radio is a poor medium for thoughtful discourse. Blogs are a bit of an improvement ... because unlike with radio-monologues, when the blogger confuses SOL with condition precedents, for instance, they usually get corrected within seconds, in a written historical record for all to see. :-)

Still, even amongst the folks here, there is contradiction and disagreement -- according to 2:10 the election challenge, by law, MUST have been filed 7/14 aka 20 days after the 6/24 r-runoff. That's also what I got, from the skimming the statute. But how can that be true, if the certification only happened on 7/7, and the law says that McDaniel had to give the SREC ten days to consider overturning the certified results before filing his legal election-challenge? Even if McDaniel gave notice to the SREC *on* 7/7, he would be prohibited legally from filing in court until 7/17, which is three days beyond the 20-day-deadline.

Of course, McDaniel (once again by law carved deep into stone pillars) is supposed to have 12 full days to review the ballot-boxes, after the 7/7 certification; and once you file the challenge with the SREC, you cannot review ballot-boxes further. Point being: the laws are contradictory, even to lawyers. There is no possibility of the in pari mutuel reading (or whatever the latin phrase is that folks here toss around), because you first have to pick and choose what portion of the laws you think trumps what other portion.

The same for the question of DOB-redaction, the subject of the TrueTheVote lawsuit in federal court: federal NVRA law conflicts with state redaction laws, at least, by one reading. I think McGehee is probably qualified to sort through the mess, but for sure, this is *not* some clear cut case where the rule-of-law says the election-challenge must be filed by X days after event Y. This is more a case of there being a hodgepodge of contradictory laws, even-more-contradictory precedents, and having your cake plus eating it too.

I'm in favor of the rule-of-law, and I'm a binary-thinker when it comes to following the law, but there is such as thing as a bad law. The speed-limit-law, for instance, is a bad one because "nobody" follows it ... and more crucially, almost nobody enforces it, except in cases of grievous violations. (A better law would be a speed-band law, where going above 60 got you a warning at the discretion of the cop, but going above 65 got you an instant mandatory ticket.) As another example, the "natural born citizen" phrase in the Constitution; what does the insertion of "natural born" even mean? Nobody seems to know! At least the speed-limit law is non-internally-contradictory; the intermeshing of the state election-law and challenge-law and redaction-law, not to mention the federal statutes, are a mess which seems far beyond speed-limit-enforcement-headaches.

Anyways, maybe McGehee can make sense of the laws, and settle the various contradictions to the satisfaction of reasonable people. If so, and if the election-challenged is overturned, *I* personally won't complain... but plenty of people WILL complain, vocally and forevermore (see my question about 'winning' at any cost above). Can somebody here please take a stab at laying out the time-spans of an election-challenge-process, with deadlines, starting with the 6/3 r-prime, certification thereof, challenge thereof, and continuing on to the 6/24 r-runoff, cert, box review, srec challenge, legal challenge? Rather than using timespans ("12 day deadline") please use exact dates ("by Monday 7/11" or whatever). Maybe that will help me see how there are no contradictions, if you read the statutes properly.

Anonymous said...

2:10, on the question of whether there was vote-buying, I have no "new" evidence for you, or the cops for that matter. But you may not be aware of what evidence already exists, methinks, since you seem to believe Fielder's internally-contradictory verbal allegations are the whole of it. This is what I have seen:

1. mid June, verbal allegations from Rickey Cole, that people like Scooby Doo Warren were being hired, and that the likely reason was "walking around money". Later, FEC confirmation that Scooby Doo Warren was in fact hired, and paid five digits by Ronnie Crudup, using money provided by Henry Barbour (some of which came from sitting repub Senators). You can do some googling, and read the top few hits for these keywords: scooby doo warren henry barbour tea party case study. This is mostly in Hinds/Rankin/Madison counties (Jackson area), as I understand the geography, but may have been more widespread.

2. late June, allegations by Fielder, later partially retracted, and even later inverted. You can discount his VERBAL statements if you wish, but you cannot ignore the text-message from Saleem, and the confirmation from Russell that policy was to pay walkers w/ cash-in-envelopes. The only question is, how MANY walkers were paid in cash, and how much were they paid; I expect the lawsuit to answer such questions, during the discovery-phase. This is Lauderdale county. See gotnews.com for most of the coverage of Fielder/Saleem/Shook in a one-stop-shopping-convenience format (or if you have an aversion to Chuck Johnson's sensationalism then just do some googling for the names).

3. sometime in August (or earlier but I missed it perhaps), an affidavit from pollworker Julie somebody, in Marshall county, that she heard people explicitly discussing how to spend the vouchers they were given for voting. See mcdaniel2014.com (search the 243-page pdf for 'voucher' or if you cannot find it I will dig up the pdf-page-num)

That is three different sets of allegations, in three different areas. Maybe it is *all* smoke with no actual fires... but I want McGehee to decide that, based on evidence presented before the court, as opposed to you and I trying to guess the answer here in the blog-comments.

More importantly, these are just allegations, at the moment. Whether there is any truth to the allegations, will require a court case, with testimony under oath, subpoena of communications amongst the parties, and a determination of how many people were paid exactly how much for what specific acts. Only that will tell us whether the allegations are provably true, maybe true but not beyond a reasonable doubt, or just noise. Time will tell (unless the case is dismissed).

Anonymous said...

I think they intentionally filed late so it would be thrown out on process rather than on the merits because this is a political "us against them" argument that has no basis in the law. They wasted a lot of time chasing political accusations that have no prayer in court - vote-buying, race-baiting, etc. - because it is obvious to everyone that there are not nearly enough ineligible votes in a true legal sense to affect the outcome. Having it tossed on process busts proves their case to the paranoid fringe.

Anonymous said...

I don't think they're smart enough to hatch a plot like that.

Anonymous said...

Anonymous 4:02: I've listened to the recording of Julie Patrick. The complaint characterizes her recording as her observation whereas the recording is her description of what her mother told her that she thought she might be
seeing. It is the rankest form of hearsay, and it isn't
even clear whether the interview is taking place where
the nonwitness Ms. Patrick is speaking in lieu of an affidavit. Is there an explanation why the mother hasn't submitted an affidavit herself? The Barbour mafia dumped
her in the Yazoo? I don't think I need a judge to sort out
that one for me.

Anonymous said...

When someone hands you binding precedent warning you of a deadline, and you still file your complaint well after that deadline, then YES, I think politics may be in play. Anyone who passed the bar knows what a procedural defect is. The court has no choice but to follow the law. The "evidence" was never there. Tyner and McD needed something else to keep this whole thing going. The "Us against them" argument is not as far-fetched as some may think. Amazing that people are still following him and refusing to question the motives behind this farce. Can someone please explain what is so appealing about this clown? Surely not the bagpipes.

Anonymous said...

I don't know, but it's ironic nobody has mentioned the clear violation of the Constitution he's talking about in the fundraising letter when he says McGehee could remove Thad from office. Article 2, Section 4; yet the Constitutional Conservatives parade on after ignorance.

Anonymous said...

Can someone give me a citation for the code section that replaced 3143?

Anonymous said...

4:02am The idea that you can pay anyone to vote for your candidate is a fool's game.

You can pay people to go vote but you can't rely on them to vote for your candidate. And, you couldn't be sure the person you give money is even registered and does anything other than walk in and walk out. You can't be sure they are literate enough to read the candidate's name! Are these " walker's " conducting literacy tests on the streets so they'd know the person can accurately pick out names? Are the walker's hauling around registration books for every voter to verify names? And you have to check for voter photo ID?

Where are these interrogations taking place?

If the walker's are just handing over money to some guy like Fielder, they the money is in Fielder's pocket and stays there! The vote isn't compromised, the candidate's staff is throwing away money!

It's a fool indeed who would use campaign money to try to " buy votes" in this way.

In getting out the vote, people are often given money to transport others to the polls who otherwise have no means of getting there. Preachers are often given money to organize transport for members of their congregation, particularly the elderly. That some many pocket some of that money wouldn't surprise me. That some of the people they transport don't vote for the person they are told to cast their vote for is a certainty.

How is it that you think this works? Somebody just walks the streets hoping to find a registered voter? If they are, they are going to find that half the people eligible to vote aren't registered and another 25% of those voting age are ineligible to vote. So they are out there looking for that 1 in 4. And, of that 1 in 4, 5-10% would take your money and not do what you told them!

And " registered" is a key word here. Getting people registered is something that might involve expense to get them to a courthouse. That's part of getting out the vote.

I love lawyers, I really do but try not to get so caught up in case law that you miss the basics. There is no need to cite case law because there is no evidence illegal voting took place! There are no credible witnesses. There is no physical evidence. And, the claims of fraud are incredible especially with a photo voter ID law!










Anonymous said...

23-15-921

Anonymous said...

Aug 22 at 1:48pm
I do not understand what Nosef sent to the McD folks: was it just the statute, or the Kellum case or both? Does anyone know?

Anonymous said...

23-15-921 deals specifically with county elections based on my reading. Is there a statute that places a time limit on a statewide election contest?

Anonymous said...

That is what the Kellum case is about. The next section 23-15-923 is the successor to 3144 referenced in Kellum. It puts no time limit on state or Congressional primaries. But the Supremes held in Kellum as you can from KF posting the case that 3143 and 3144 that the two sections have to be read "in para materia" Team Cochran took it one step further and provided a case that basically says that if a code section is materially unchanged from a previous version, then caselaw based on the previous version flows through to the new version.

Anonymous said...

12:40
Not a statute limitations, but the requirement from 23-15-921 of 20 days applied as a condition precedent to a statewide election challenge under 23-15-923 by the MS S.Ct. in Kellum because the two statutes have to be read together as part of the same act, all under the same time requirement.

But exactly what did Nosef send McD: a copy of Kellum?

Anonymous said...

12:40,
You have to read the Kellum case as it applies the election challenge statutes that are the predecessor statutes of the current statutes and are essentially unchanged as to the issue before the court now. 23-15-921 sets forth the twenty day period to challenge for county elections. 23-15-923 covers state, congressional and judicial elections, but does not mention a time limit for a challenge. The court in Kellum read the similar statues in that case as incorporating the 20 day limit for district and congressional elections as well. Since the statutes in Kellum are essentially the same as the current statutes on this point, Kellum appears to apply unless the Miss. Supreme Court overrules Kellum. Hence the challenge is too late.

Anonymous said...

1:31, my understanding is that when Nosef became aware of Kellum, he sent copies of it both camps.

Anonymous said...

2:12,
I don't know what Nosef sent to McDaniel, but presumably as a lawyer, not to mention Chair of the Mississippi Senate Committee on Elections, McDaniel was or should have been familiar with both the statutes and Kellum. I don't really see that he can plead ignorance, and unless Nosef told him something that was clearly wrong and upon which he could rely, I don't think it much matters what Nosef told him. I assume, if there was something in error in Nosef's communication, that will come out at the motion hearing.

Anonymous said...

1:31
Wow. That's huge. If Cochran has the letter of transmittal to both sides from Nosef enclosing Kellum, I can see that being brought out. No excuses then for McD. Hope that is made clear to the Judge.

Anonymous said...

3:37 - the 20 day time limit is the requirement to file a challenge. The statute says that the challenge would be first filed with the State Ex Committee - the deadline applies to that filing, not the filing with the Court.

Once filed with the Ex Comm, the contestant has ten days in which to file with the court.

As to the 12 days for examination of the ballot boxes, that cannot begin until after certification. It can overlap with the 20 days for filing the challenge. Yes, they can overlap, but they do not conflict. If more issues were found during the exam after the filing with the State Committee, then they could be raised during the contest by amending the pleadings.

The federal law that you say the TTV folks raised have no contriadictions with the state law on redactions. The fed law deals with registration procedures, not with voting. The TTV folks are evidently just as inept as the McDaniel legal team.

There are no contradictions in these state laws, despite the claims made by McD or any of the various commentators on blog sites. This is not the first election contest we have seen in this state - just one of the few that has drawn statewide attention. There are many problems with our election laws in MS, but these issues over the timing and requirements for election contests are not one of them.

Reality check here... said...

4:02, BS. Absolute BS. Just like your earlier comments here. You use Ricky Cole - ED of the state democrat party - statement about what 'he had heard' as your evidence? Yes, he pointed to Scooby Doo, a long-time Dem operative he is evidently quite familiar with as working for folks associated with the PAC. But that was a get-out-the-vote effort. Not vote buying. Totally different, even if Chrissy says differently.

Campaigns have been using paid workers to get-out-the-vote (GOTV) for years. People walking the street canvassing neighborhoods; passing out literature; working ballgames and shopping centers; holding signs on election day; hauling voters to the polls.

Not vote buying - just good campaigning. And Chrissy's campaign did it as well - just not as good evidently. As I said, Scoobby Doo's involvement does not equate to "vote buying". One is totally legal and normal electioneering. The other is a criminal act. You accuse folks of the criminal act based on Ricky's assertion that Scooby Doo was involved?

Yes, Ronnie Cruddep was involved. The PAC worked with Cruddep's PAC in GOTV efforts. Again - vote buying? Not at all. No evidence, just charges made by Chrissy, and repeated by you and other idiots that believe everything he says as gospel.

The 'text message' shown by Fielder? Hardly evidence. Fielder was paid $300, with another $300 after performance, for carrying voters to the polls, which he didn't perform. But the $15/voter in envelopes is part of his lies. Workers were being paid - in cash - for walking the neighborhoods and GOTV. That's why they wanted names, addresses and SSNs. To be able to report the workers. Why would they want that info for illegal vote buying efforts?

And then, of course, is that hard evidence of what someone says she heard her mother say that her mother heard another poll worker say, and how her mother interpreted it. Obviously good clear evidence there. Why not go to the mother, and to the other poll workers? Probably because they wouldn't get the storyline that they wanted - just like all their other "evidence".

Grow up. Understand that your boy is making up stories so that fools like you will keep on sending in your $75, or $50, or now $35 - too keep his ego growing. Despite any truths.

Timeline here. said...

3:37 - Timeline requested.

First primary Tuesday June 3rd.

Any contest would have to be filed by Monday, June 23rd. (The basis I believe for the 20 day time limit - to have contests filed before the runoff election.)

Second primary Tuesday June 24th.

Certification must happen by statute within 10 days, or July 4th. But because July 4th is a holiday, it moves to the next day, which in this case was a Saturday; thus the deadline was July 7th.

Certification by State Executive Committee occurred July 7th.

Examination of ballot boxes can begin after certification and after having given the opposing candidate(s) 3 days notice. In this case, the notice was given to Cochran prior to the certification, so the 12 days time frame began on July 8th (after certification) and ended July 19th. Examination time of 12 days includes Saturdays, Sundays and holidays.

Any contest must be filed within 20 days of the election - in this case - July 14th.

Statute was changed in last couple of years requiring that any appeal of the state committee (or if committee refuses to act) must be filed within 10 days of filing with committee. Law used to say it must be filed "forthwith" and much case law over how many days "forthwith" meant.

McDaniel filed with State Committee on August 4th - although he actually didn't file complete petition with attachments until three or four days later.

As to when he filed with the Circuit Court, if you assume that he could ignore the first requirement (20 days of the election) the only timeline left was that he file with the Court by August 14th - or if you consider the 'complete petition' - I guess it would be August 17th.

The reasons for these deadlines is quite clear as has been explained in Kellum and many many other SC rulings. The point is to complete the contest period in time for the remainder of the election process to proceed. In this case:

Ballots must be printed and mailed 45 days prior to the general election; September 22st.

If a judge were to rule a new election from the contest, the election would have to be held at the latest by September 16th, in order for the results to be certified and get ballots printed - and that would be a push.

If a new election were ordered, the candidates would need time to campaign - lets say a minimum of three weeks. That being the case, the trial would need to be completed by August 25th. And in this case, the judge is anticipating a several weeks trial.

Ergo, the reasons for all these deadlines and a strict compliance with them. And while we are at it, other court cases that say these laws are to be strictly followed and cannot be extended by the courts.

Hopefully this timeline answers what you were look for and helps.

Anonymous said...

Sounds like McD and Tyner are just SOL on the 20 days from June 24 to challenge the election with the SREC.

Anonymous said...

The Clarion Ledger is reporting that McDaniel has filed his response to the motion to dismiss. Looking forward to seeing the actual document, but the report indicates he is making a predictable argument that Kellum doesn't apply because it was decided prior to the current version of the statutes on election challenges.

However, since the wording on the time requirements has not changed between the prior and current versions, that argument seems unconvincing.

Anonymous said...

John Pittman Hey, who sometimes posts here, gave an online-radio-interview (with somebody in Georgia named Will Stauff) which discussed the 20-day-deadline question, and Kellum. According to JPH, the current statutes covering local and county elections specify the 20-day-deadline, but the (separate) statutes covering statewide elections do not mention any deadline. Kellum in 1959 was arguing that the 20-day-deadline applies anyway, as I understand it.

JPH says the motion to dismiss is a coinflip, 50/50 for dismissal and 50/50 the case will be heard; he specifically mentioned the overhaul of rules of evidence and other court procedures in the 1970s. I believe the motions will be heard on the 28th, so we will see what happens.

Not John Pittman Hey said...

7:36 most interesting part of your comments is why in the world would anybody in GA bother to get JPH to comment on anything - particularly election law of which he knows nothing.

While 'rules of evidence and other court procedures' have been overhauled, there have been no court cases since Kellum on the question of a deadline. The election statutes have been rewritten twice since Kellum and neither rewriting or any other minor changes have been made to the relevent code sections.

My bet (95-5) is much larger than JPH's based on the Judge looking to see if Kellum is "good law" (nothing different found by MSSC since Kellum).

Anonymous said...

5:27, timeline much appreciated. That is pretty much how McGehee ruled on the case, as well: that the strict 20-days-from-June-24th deadline applies. I liked McGehee, he seemed a fair judge; I still think the election code is obviously busted (candidate does not have 12 days for box-review if they must file within 20 days).

As you point out, the "full" filing by McDaniel lawyers was not completed until 8/7, with supplementals. If the law-as-set-by-Kellum-precedent is strictly followed, candidates would have to file *WOEFULLY* incomplete challenges, based on a box-review of a few biz-days. Also, note that the deadline-slips by Pete Perry at the county-level and Delbert Hosemann at the state-level (not certifying county results within the 4-day-deadline and not certifying state results within the 10-day-deadline) were NOT considered by McGehee as pertinent. That is very worrisome to me, going forward.

Anyways, methinks that the state legislature will likely do some election reform effort in the next few years, and sort out the deadlines so they are non-overlapping, and so that failure to perform by actors early in the process, does not unduly penalize actors who are statutorily far later in the process. I expect in the end the affidavit-deadline will be 5 bizdays, the county-cert-deadline will be 2 bizdays after that is finished, the state-cert-deadline will be 2 bizdays after that is finished, the box-review-period will be 10 bizdays, the public-records-review will be 5 bizdays, the challenge-filing-deadline will be 1 more bizday, the SREC meeting will be mandated to occur exactly one week after the challenge-filing, the SREC will be given ~5 bizdays to deliberate, and if the SREC does not act by then, the candidate must file in court. This approach will leave about 4 weeks for courtcases (including all appeals) to be finished before mid-September... which is not really enough time. Maybe the date of primary-elections will be moved up, or maybe the date of ballot-printing will be moved down. There is a furor over the USPS four-day-guarantee about ballot-delivery in DC, that I heard about recently.

1:35, not sure what you have against JPH, but he is definitely quite savvy about the MS election code. Your 95-5 wager would have drawn more takers than his 50-50 wager. Personally I was guessing that McGehee would stay the motion to dismiss until after the evidence was heard, without prejudice to the motion (my guess was wrong). In any case, there is now going to be an appeal to the MS supremes. Do you have a wager on that outcome, as upholding McGehee's reading, or overturning it? And what about a wager for whether there is an attempt to appeal at the federal level, either by Garrick (which JPH says that guy has done in the past) or by the McDaniel lawyers? Your prediction of August 28th was good, so I'd be interested to hear your further predictions on these future possibilities & probabilities.

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